28 N.Y.S. 453 | N.Y. Sup. Ct. | 1894
The mortgagee having the right, under the power of sale, to foreclose his mortgages without action, their validity can be contested only by an action to have it adjudged that they were null and void, or that they have been paid, as the case may be. The mortgagee can ask to have the mortgages foreclosed in this action, and on such an issue might have an injunction restraining the plaintiff from removing the property from the state, or from dispersing it, to the injury of the mortgagee’s interests. We think, under the allegations, that the mortgagee should be restrained from enforcing the power of sale pending this action, upon condition the plaintiff should be required to give an undertaking, in lieu of those heretofore given, in the sum of $2,000. No costs to either party. Order modified accordingly, without costs.